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B v P (Children's Objections) [2017] EWHC 3577 (Fam)-1

Father’s unsuccessful application for summary return of two children to Hungary

This application, made pursuant to the Child Abduction  and Custody Act 1985 and 1980 Hague Convention, concerned the parties' two children aged 12 and 11 who both merited a diagnosis of autism without intellectual impairment. The mother, who had moved with the children to England in November 2016, raised two defences to the application: (1) the Art 13(b) defence that summary return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation; and, (2) the Art 13 defence that the children object to their return, where based on age and maturity it is appropriate for the court to take account of their views.

The final hearing, originally listed for September 2017, was adjourned to allow for the preparation of a report from a child psychologist, which the court considered necessary having regard to the children's diagnosis of autism, the defences raised by the mother and the children's presentation when they met with the judge.

With regard to meeting the children, MacDonald J noted the difficulties of judges seeing children, particularly in the context of the injunction against using such meetings as a means of gathering evidence. However, the judgment makes it clear that it will only be in rare cases that such evidence from a child psychologist will be necessary in evaluating the Art 13 defences.

Between paragraphs 15 and 59 of the judgment, the judge sets out at length the evidence before the court regarding the allegations of domestic violence made by the mother against the father, the children's subjective fears of their father and their objections to returning to Hungary.

On the allegations of domestic violence, the judge concluded that the evidence demonstrated a good prima facie case that the mother was the victim of domestic abuse at the hands of the father, that there was a traumatic incident in September 2015 where the father assaulted the mother and that the children had witnessed incidents of domestic abuse.

As to the defences, the judge concludes as follows:

(1) Children's objections

The judgment sets out the clear guidance provided in Re M Republic of Ireland (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 and what factors the court will have to consider in exercising its broad discretion in determining whether the defence is made out (Re M [2007] 1 AC 619.

Having regard to the evidence of the child psychologist, the judge was satisfied that the children had attained an age and degree of maturity at which it was appropriate to take into account their views and he rejected the father's assertion that the children's objections had their root in influence of the mother or her family. In exercising his discretion, MacDonald J concluded that the matters relied on by the father (e.g. the children being Hungarian, speaking Hungarian as their first language and staying in England limiting their relationship with him and their extended family) were heavily outweighed by other welfare considerations. These included the children's objections having been and remaining persistently and very strongly expressed, the likely result in a significant deterioration in their mental health, the children viewing England as a safe harbour and the fact that permission had already been given in Hungary by an administrative hearing before the Deputy Head of the Judicial and Social Services Department for the mother to remove the children and reside in the UK (albeit that this was subject to an appeal).

Having balanced the competing welfare considerations, the judge concluded that he should exercise his discretion resulting from the children's objections to not order their return.

(2) Harm

Again, the judgment helpfully distils the key principles in relation to this defence from the Supreme Court decision in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27. The judgment further records that where Art 11(4) of BIIa is engaged, the court cannot refuse the return based on the Art 13(b) defence where the court is satisfied that adequate arrangements can be made to secure the protection of the children. Importantly, the judge held that the in circumstances where Art 13(b) expressly focuses on the question of harm to the child, the child's subjective fear independent of the truth or otherwise of the allegations is capable of grounding the defence, as there would be a grave risk that return would expose the child to psychological harm.

The judgment concludes that the children's expressed fears are based both on the objective facts and on the overlying subjective fears that the children have drawn from the objective experience in light of their particular condition. The judge therefore concluded that a return would involve, for each child, a grave risk of exposure to psychological harm and would place each in an intolerable situation. Further, by reason of the fact that it was Hungary itself that drove the children's fears, and the adverse consequences a return would therefore have, the judge was satisfied that none of the protective measures proposed would adequately ameliorate the grave risk of exposure to harm.

Once again, the judge therefore concluded that this defence was made out.

The father's application for summary return was therefore refused.  

Summary by Oliver Woolley, barrister, 1 Garden Court Family Law Chambers

____________

Neutral Citation Number: [2017] EWHC 3577 (Fam)
Case No: FD17P00357

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2017


Before:

THE HONOURABLE MR JUSTICE MACDONALD

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Between:

B
 Applicant
- and - 
P Respondent
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Mr Nicholas Anderson (instructed by Williscroft & Co) for the Applicant
Mr Graham Crosthwaite
(instructed by Sills & Betteridge) for the Respondent

Hearing dates: 20 and 21 December 2017
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................


THE HONOURABLE MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.
 

Mr Justice MacDonald:
 
INTRODUCTION

1. This is an application pursuant to the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for an order for the summary return of two children to the jurisdiction of Hungary.  The children are D, aged 12 and F, aged 11.   This is the final hearing of the father's application, a previous final hearing listed on 1 September 2017 having been adjourned in circumstances that I will come to.

2. The applicant father is B (hereafter 'the father').  He is represented by Mr Nicholas Anderson.  The respondent mother is P (hereafter 'the mother').  She is represented by Mr Graham Crosthwaite.

3. The children are not separately represented in these proceedings but have been seen by a CAFCASS Officer who has ascertained their wishes and feelings in respect of a return to Hungary.  At the request of the children, on the recommendation of the CAFCASS Officer and with the agreement of the parties, I met the children.  That meeting occurred prior to the commencement of the final hearing listed on 1 September 2017 and in accordance with the provisions set out in the Guidelines for Judges Meeting Children who are subject to Family Proceedings issued in April 2010.  I also received a short letter from D composed when he met with the CAFCASS Officer.

4. Following my meeting the children (and in light of information before the court from Hungary that each child had a diagnosis of autism and the fact that the mother was seeking to rely on the defences of harm and child's objections under Art 13 of the 1980 Hague Convention) I was sufficiently concerned over the children's presentation to raise with the parties the question of whether an expert report by a child psychologist should be commissioned.  Having heard submissions on that issue, I directed a report from a child psychologist and adjourned the final hearing.  That report is now before the court.

5. As I made clear at the hearing on 1 September 2017, having regard to their diagnosis of autism, the children's presentation when they met me and the defences raised by the mother, I considered that such a report was necessary within the meaning of s 13 of the Children and Families Act 2014 and FPR r 25.4(3) in order to assist the court in resolving the questions before it,  Namely, whether the question of whether there is a grave risk that the return of these children to Hungary would expose them to psychological harm or otherwise place them in an intolerable situation, and the questions of whether each of the children's expressed views amounted to an objection within the meaning of Art 13 and whether the children had attained a degree of maturity where it was appropriate to take account of their respective views. 

6. It is important to make clear, and I do so, that my conclusion that an expert report from a child psychologist was necessary in these proceedings for the reasons I have outlined was specific to the facts of this case.  It will only be in rare cases that expert evidence will be necessary to assist the court when evaluating defences raised under Art 13 of the 1980 Hague Convention.

7. The father seeks the summary return of the children to the jurisdiction of Hungary, alleging that the mother wrongfully removed the children from that jurisdiction in November 2016. The mother has informed the Pécs District Court in Hungary that the children have been living in England since 4 November 2016. 

8. The mother originally contended that the father had consented to her removing the children from the jurisdiction of Hungary and that the father was not exercising rights of custody at the time the children were removed by her.  At a hearing on 15 August 2017 the mother, represented by counsel, indicated that she was no longer seeking to assert that the father had consented to the remove of the children from the jurisdiction of Hungary or that he was not exercising rights of custody at that time.  Within this context, I note at the outset that it is apparent that the mother now concedes the following matters:

i) At the time the mother retained the children outside the jurisdiction of Hungary they were each habitually resident in that jurisdiction for the purposes of Art 3 of the Convention;

ii) Both children were below the age of 16 at the time the mother retained them outside the jurisdiction of Hungary and remain so;

iii) The father did not consent to the retention of the children outside the jurisdiction of the Hungary;

iv) The retention of the children outside the jurisdiction of Hungary was wrongful for the purposes of Arts 3 and 12 of the 1980 Hague Convention;

v) At the date the father commenced proceedings both the children had been in the jurisdiction of England and Wales for less than 12 months.

9. Within the context of these concessions, as of the date of this hearing the mother concedes that her removal of the children from the jurisdiction of Hungary was wrongful for the purposes of the 1980 Hague Convention.  As I have alluded to already, the mother now seeks to resist the return of the children to Hungary on two grounds under the 1980 Convention.

10. First, pursuant to Art 13(b) of the Convention, that the summary return of the children to the jurisdiction of their habitual residence would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation.  Second, pursuant to Art 13 of the Convention, that the children object to their return to the jurisdiction of their habitual residence and have each attained an age and degree of maturity at which it is appropriate for the court to take account of their views.

11. In determining this matter, I have had the benefit of a bundle of documentary evidence.  In particular, I have had the benefit of reading two statements from the father (the first statement being one prepared on his behalf), three statements from the mother a report from the CAFCASS High Court Team, authored by Ms Lillian Odze and an expert report from the clinical and chartered child psychologist jointly instructed in this case, Mrs Mechthild Jenkins. Each advocate has lodged with the court comprehensive and extremely helpful Skeleton Arguments.

12. Finally, by way of introduction, it is important to note that proceedings remain ongoing in Hungary with respect to the welfare of the children.  Those proceedings are administrative proceedings before the Deputy Head of the Judicial and Social Services Department in Pécs and judicial proceedings before the District Court in Pécs.  The father's Hungarian lawyers have advised him that those proceedings are independent of each other.

13. On 10 October 2017, there was an administrative hearing before the Deputy Head of the Judicial and Social Services Department in Pécs, Dr Jancsi, the result of which hearing was to "designate" the place of the children's residence as being in the United Kingdom with their mother.  This decision followed Dr Jancsi hearing submissions on the welfare of the children and the law and delivering a reasoned decision.   The father has launched an appeal of that decision.  However, the decision is expressed to be immediately enforceable notwithstanding any appeal and in the knowledge of these ongoing proceedings and parallel proceedings in the District Court in Pécs.  In the circumstances, as matters stand the mother is permitted to remove the children from Hungary and reside with them in this jurisdiction.  A hearing in the proceedings before the District Court in Pécs took place on 23 November 2017 but no decision has yet been handed down.  There has been a suggestion that the District Court in Pécs is awaiting the determination of the Hague Convention proceedings in this jurisdiction before determining how to proceed.

14. At the pre-hearing review of this matter I raised the possibility of judicial liaison taking place between the Hague Network Judge in this jurisdiction and the Hague Network Judge in Hungary to ascertain the precise interrelationship between the administrative proceedings before Deputy Head of the Judicial and Social Services Department and the proceedings before the District Court in Pécs.  The parties drafted questions to this end.  However, given the proximity of this hearing and the complexity of the questions requiring answers, I subsequently decided that this court was in a position to deal with these proceedings without that information.  Neither party sought at the outset of this hearing to depart from that analysis.


BACKGROUND AND EVIDENCE

15. Both the mother and the father are Hungarian nationals.  They commenced a relationship in or about 2004.  As I have recounted, D was born in 2005 and F in 2006.

16. As I have also already made reference to, it is important to note that both of the children fall on the autistic spectrum.  Reports from Hungary indicate that D has been assessed as having delayed development in communication, social interaction and behavioural regulation.  F has been diagnosed in Hungary with a pervasive developmental disorder and an as yet unspecified autistic spectrum disorder.  Prior to their departure from Hungary both children were attending a specialist school.  In her report for this court, Mrs Jenkins opines that both children merit a diagnosis of Autistic Spectrum Disorder without accompanying intellectual impairment.

17. Following the birth of F the parents married on 21 June 2008.  They separated on 13 September 2015.  The mother alleges that the relationship between the parents was characterised by domestic abuse.  On behalf of the father, Mr Anderson seeks to emphasise that in the mother's first statement to this court, authored prior to her instructing lawyers, the mother makes reference to only one incident of violence, that being on 13 September 2015, the statement otherwise concentrating on practical and financial matters.  In her first statement, the mother says as follows about the incident:

"Our marriage had broken down over several years and on 13 September 2015, my husband violently attacked me in my home.  Both my autistic children tried to help me to escape from the house.  From that date we lived with my mother in my grandmother's house (from 13 September 2015 to 4 November 2016)."

18. In her second statement, the mother alleges that the father became controlling from a point following her becoming pregnant with F in February 2006, which behaviour the mother alleges continued for the remainder of the parent's relationship.  The mother alleges that following the parents' marriage in June 2008 the father's behaviour towards her deteriorated further, with him becoming verbally abusive and physically and sexually violent towards her and forcing her to perform sexual acts that were degrading and with which she was uncomfortable.  The mother further alleges the father would shout at the children, which they found very frightening.   The mother alleges that in the Summer of 2010 the father responded to the mother questioning him about where he had been by grabbing her around the throat, pinning her against the wall and shouting "shut the fuck up, it's none of your business where I have been and what I've been doing", continuing to scream abuse for a further half an hour before leaving the property.  The mother alleges that following this incident, the father would on occasions return home drunk and verbally abuse her, leading the children to fear that he was going to kill her.  The mother alleges that the father would damage household items in temper and continued his controlling behaviour in respect of her, including financial control. 

19. In her second statement, the mother also alleges that the father would extensively question D about his recollection of the day's events to check whether it matched the mother's account of the day and would try and toughen him up by teaching him to fight.  The mother contends that D learnt that if he gave an answer that contradicted the mother's account the father would verbally abuse the mother for the remainder of the evening, sometimes leading to a physical assault in which the father would grab the mother's wrists and arms hard enough to leave bruises.  The mother alleges in the Spring of 2011 the father slapped her hard across the face, as a result of which she could taste blood in her mouth. The mother relies on statements from her younger brother and her mother to corroborate her allegations of drunken and aggressive conduct by the father towards the mother and the children and physical violence by him towards her.  When Ms Odze spoke to Hungarian Social Services, the social worker, Mr Nagy, confirmed that the family was known to his department, that the department had been aware of the alleged domestic abuse in the household and that the department was involved "on a daily basis due to family conflict".

20. Ms Odze reports that D also provided her with a description of life in the family home prior to the incident in September 2015.  His account to Ms Odze of the period before September 2014 includes allegations that the father was shouting at the children all the time in the period up to them leaving the family home, that "whenever we went out with my Mum, when we got home, I was literally interrogated by my Dad for hours and hours in the kitchen" with "questions I didn't understand at the time" including whether the mother had met someone else.  D claimed that his father wanted to teach him how to fight but he did not want to and his father had called him a "limp dick". 

21. The father responds to these allegations by denying that there was any physical or sexual violence by him towards the mother or that he abused alcohol or that he engaged in controlling behaviour of the mother.  He denies any abusive behaviour towards the children.  The father accepts that the marriage got into difficulties and that those difficulties led to arguments, some of which occurred in the presence of the children. The father points out that the mother married him in 2008, after some of the incidents which she alleges are said to have occurred.  The father further points to the fact that the mother appears to have made no mention of domestic abuse to the Pécs District Court on 7 March 2017, which hearing the mother attended in person and at which hearing she stated that the children retained their private status at their Hungarian primary school and returned there for their examinations.  The father contends that he has never been in trouble with the Police.

22. With respect to the alleged incident on 13 September 2015, in her second statement the mother gives the following account:

"Things finally came to a head on September 13 2015 when, after we had gone out as a family to eat, B made a rude comment to me and I raised an eyebrow in response.  This was enough for B to begin grabbing me and pushing me around in the street.  I told him to stop and looked around at other people in the street in the hope that someone would assist me.  He shoved me hard again, swore at me and then stormed off.

I returned home with the children and B came back around forty minutes later, smelling strongly of alcohol.  I was washing clothes in the bathroom and B began interrogating D in my bedroom, D evidently gave B an answer that made him angry.  B came into the bathroom and smiled sadistically at me.  I knew from experience he would become violent.

I ran from the bathroom but he followed me, grabbed me and shoved me around, throwing me across the room and against the furniture whilst shouting abuse at me.  The children were screaming and crying, trying to make him stop and trying to get between us.  He then pushed me back into the bathroom and told me 'Now I will teach you how a man should treat a woman'.  I started to scream because I was sure he was trying to kill me.  The kitchen taps had broken and so I was forced to use the sink in the bathroom to wash dishes and B attempted to lock me into the bathroom with him and the sharp kitchen knives.  He pushed me into the bathroom whilst my children attempted to restrain him, he then shoved me across the room where I slashed my hand open on a carving knife that was on top of our washing machine.  I managed once again to escape from the bathroom bleeding heavily from my slashed palm and my children hugged me to prevent further assaults by B.  He attempted to rip them from my arms but they refused to let go of me and I of them.  They were distraught and crying uncontrollably they thought they were going to see their mother murdered by their father."

23. The children have also provided accounts of the incident of 13 September 2015.  Ms Odze observed that the children's fear of their father came across as quite tangible and real.  In her report to this court, Ms Odze records that D provided her with an account of the incident, through a Hungarian interpreter.  Her report relates the following account:

"Before I was able to set out the purpose of our meeting, D raised his hand (something which I noted he was doing throughout the interview when he wanted to say something) and said "can I say how the whole thing happened?"  He recounted "when we were living in [address given], my father asked something from me, I don't remember what he asked exactly, but I know one thing for sure he misunderstood my response to his question and he attacked my mother, he wanted to lock her in the bathroom and threatened to kill her, that's when knives were in the bathroom, my Mum slit her hand, I was very scared that he (the father) would indeed kill my Mum and I was crying.  My sister hid in her room and I tried to pull my father back to stop him from killing my mum and then my sister joined in and tried to pull my father away so we both tried to save our Mum so we packed our things and then we went to my grandmother's in a taxi."  D told me this incident happened "nearly two years ago about 10 September as this was when we have been living separately".

24. D told Ms Odze that after they moved in with the maternal grandmother after the incident in September 2014 "we kept the windows and curtains closed so that my Dad could not get in and kill my Mum, with my Mum and my grandmother, I feel in the island of safety."  During his conversation with Ms Odze, D described being scared of his father and started crying and said "I am so scared of my father, I don't even want to talk to him". 

25. Ms Odze also sets out in her report a description provided by F of the incident in September 2015, Ms Odze recording as follows:

"I asked F what she understood as the reason for coming to see me.  She said "when the plane took off, because my Dad wants to take us away from my Mum, I am very, very afraid of my father".  At this point F became distressed and started to cry.  I asked her why she was scared and she said "I am very, very scared that my father will kill my mum.  I am scared because he will kill my Mum." I asked her why she thought her father likely to kill her mother and demonstrating this, F said "because he keeps pushing my Mum against the wall, he hit her many times in the bathroom we saved my Mum and very quickly left the place.  I asked F if there was anything else that she would like to tell me.  She said "no" before standing up and saying as she was walking towards the door "that's enough for me, I am very scared of my father, I love my Mum and my grandma very much." With that, she left the room."

26. In her jointly instructed expert report, Mrs Jenkins gives the following account of a description given by D of the incident in September 2015:

"D has alleged that he observed his father attaching his mother, putting his hand around her neck.  D thought his father was going to kill his mother. During the struggle, his mother cut her hand on a knife that was lying on a worktop in the bathroom, which caused a lot of bleeding (apparently the family did the washing up in the bathroom as the kitchen sink was out of order).  D indicated that he was trying to pull his father off his mother and that he was crying.  He also said F was hiding in her room, but came out crying and trying to help their mother as well.  D added that his father was shouting and getting angry most days, which made him feel very afraid."

27. As D became distressed during this account, Mrs Jenkins did not consider it appropriate to explore this account in more detail, particularly bearing in mind the fact he had already given a detailed account to Ms Odze.  Mrs Jenkins did not consider it appropriate to seek to elicit an account from F in light of her evident distress.  Mrs Jenkins formed the impression from the children's respective demeanours that the children were describing an event that they had seen and experienced.  In her oral evidence, Mrs Jenkins stated that it was "so obvious" that the children were displaying genuine feelings and distress.  She also pointed out that children on the autistic spectrum are far less able to pretend events occurred when they did not or to 'fake' feelings, and far more likely to reveal efforts by others to compel them to fabricate events.

28. In his second statement, the father admits that an incident did occur on 13 September 2015.  He asserts that he cannot recall the details given the time that has passed since the incident.  However, he corroborates a number of matters contained in the mother's statement.  The father concedes that the family had been out for a meal and that an argument had already started whilst they were still out.  The father denies pushing and shoving the mother in the street or that he became drunk.  The father concedes that the parents were arguing in the bathroom but denies throwing the mother around.  The father concedes that the mother sustained a cut to her hand but states it occurred when "she slipped" and cut her hand on the rough surface of the wall.  The father denies that the children were clinging on to their mother or that they thought he was going to murder her.  Once again, the father points to the fact that the mother appears to have made no mention of this incident to the Pécs District Court on 7 March 2017.

29. As set out in her first statement, following the incident on 13 September 2015 this incident the mother moved out of the family home with the children.  The father remained in the family home.  The mother contends that following the incident on 13 September 2015 the children refused to see their father and D insisted that the door be constantly locked and the shutters kept closed on the windows, even during the day.  The mother contends that D spoke in whispers for months, afraid that the father would hear his voice and find him.

30. Mr Anderson submits that following the incident on 13 September 2015, the following matters are relevant to the credibility of the defences now raised by the mother in these proceedings:

i) The mother continued to visit him and that the parties maintained a sexual relationship.  The father exhibits explicit text messages between the parents that he contends corroborates this.

ii) The children agreed to see the father at Christmas 2015.  The mother states that she had spent considerable time reassuring the children prior to this visit.

iii) Between December 2015 and March 2016, the father had contact with the children.  The mother contends that the father would simply attend approximately every ten days and demand to see the children.  She contends that the children refused to leave the house to talk to him so he made them stand in the window and say hello.  The mother asserts that F sometimes refused to stand in the window.  The maternal grandmother recalls that long discussions were had with the children and attempts made to calm them down in order to persuade them to sleep in the house with the father immediately prior to him departing for Canada.

iv) On 26 August 2016, the mother texted the father and informed him that the children were happy about his return to Hungary and considered that they were waiting for him.

31. On 10 March 2016, the father went to Canada, where he remained until 28 September 2016.  The mother contends that in around March 2016 she indicated to the father that she wanted a divorce.  She also contends that, in the absence of the father supporting her financially she decided that the only way to support herself and the children would be to move to the United Kingdom.  Whilst the father agrees that on his return to Hungary in September 2016 he signed a document with respect to the mother leaving for England with the children, he felt he had been duped into doing so and on 25 October 2016 his lawyers wrote to the mother indicating that the father had withdrawn his consent to any relocation.  As I have noted, the mother no longer pursues a defence of consent and accepts that her removal of the children to the jurisdiction of England and Wales was wrongful.

32. Mr Anderson relies on the fact that the children saw the father on four occasions between his return to Hungary and prior to the children's departure to England as relevant to the credibility of the defences now raised by the mother.  The mother contends that following these contacts, and the father feeding the children entirely unsuitable food, they refused to be left alone with him again.  Mr Anderson also relies on the fact that, upon her arrival in England, the mother set up a Skype account to allow the father contact with the children and offered to pay 50% of the costs of the father travelling to England to have supervised contact with the children.

33. The mother removed the children to this jurisdiction on 4 November 2016.  The father completed his request to the Hungarian Central Authority on 28 April 2017.  That request was transmitted to the English Central Authority on 19 June 2017.  The Hungarian Ministry of Justice confirmed that the father has rights of custody for the children pursuant to the Hungarian Civil Code on that date.

34. Within the foregoing context, the mother contends that the summary return of the children to the jurisdiction of their habitual residence would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation pursuant to Art 13(b) of the 1980 Hague Convention.  The father disputes this assertion.  In any event, the father submits that protective measures can be put in place.  Within this context, the father offers the following undertakings:

i) Not to come within 100 metres of any property at which the mother and the children reside in Hungary.

ii) Not to remove the children from the care of the mother save for agreed contact with the children.

iii) Not to use or threaten violence or intimidate in any other way the children or the mother.

iv) To communicate with the mother through her solicitors, provided that provision is made for contact between the father and the children on their return to Hungary.

v) To pay for the return flights to Hungary for the mother and the children.

vi) Not to pursue criminal charges against the mother upon her return to Hungary in respect of her removal of the children from that jurisdiction. 

35. In addition to the forgoing undertakings, the Ms Odze requested details of protective measures that are available to the mother in Hungary, including information from the Family and Child Welfare Service dated 3 August 2017.  That letter summarises the protective measures that are available as follows:

i) The mother may seek the assistance of the Police to keep the father away from the mother and the children;

ii) The mother may seek child maintenance from the father;

iii) The mother may ask for a placement in a temporary family home or placement in a protected house.

36. In addition to these matters, Mr Nagy confirmed to Ms Odze that if the children return to Hungary the social services department would again become involved with the family.  The mother however, contends that the social services and the Police in Hungary were not able to protect her and the children from violence from the father when she resided in that jurisdiction with the children and would be ill equipped to do so now.  She relies in support of that contention on the remainder of the letter from the Family and Child Welfare Service, which sets out the practical limitations on the efficacy of the protective measures detailed in that letter. 

37. The mother also relies on the defence of objections pursuant to Art 13 of the 1980 Hague Convention.  In her second statement, the mother contends that the children do not wish to have any contact with their father.  In respect of D, the mother contends that when D finds out that the father will be contacting him, he sweats profusely and gets very nervous. In note in this context that when Ms Odze asked D about contact with their father since they arrived in England D said that "every time I see its him calling I start sweating".  The mother states that both children have pleaded with their father to leave them alone and to stop calling them.  The mother asserts that the children are fearful of their father.  She further asserts that both children have expressed to her a strong desire not to return to Hungary.  She contends that D has said on numerous occasions that should be he forced to return to Hungary, he will refuse to eat any food his father or grandmother gives him.  The mother contends that F has said that should she be forced to live with her father, she will run away as soon as she can, with D confirming he would run away with her.

38. With respect to the question of the children's objections, Ms Odze records in her report the following exchange with D:

"I reminded D that I would report what he told me to the Judge but could not guarentee that he and his sister could stay here.  I therefore wondered how he would feel if the Judge ordered that he and his sister go back to Hungary and that a Judge in Hungary would decide where they should live and about the time they should spend with their father.  D said "if we have to go back, I am very scared.  One occasion when we were with my grandmother, my Dad came and my Mum gave him a list of food but he bought me milk chocolate which I can't have." I again explained that if they went back, they are likely to live with their mother and the Judge in Hungary would decide about contact with their father.  D said "If I have to go back to my father, I know that he will not follow my diet so I would rather starve myself."  I tried to explain in other ways that he will not be made to live with his father.  D began to weep again and sounding quite distressed, he said "but I am scared that my father will kill my Mum if we return, when we spoke on Skype and I told him I don't want to go back, he (the father) told me that she (the mother) did a good job in turning us against him and my Dad told my Mum that she will regret it.  I kept on repeating to my father that we don't want to go back and he said that no matter what we say, he still loves us and wants to be with us." Again unprompted, D said "and then another time when we would be in the street (this was him, the mother and his sister in Hungary), we would look over our shoulders fearing that my Dad would attack my Mum.  I am very worried that Dad wants to take us away from my Mum, I am mostly scared that Dad will kill my Mum."…I wondered what [mum] had told them about coming to the UK and staying her and he replied "she didn't say anything, I felt that my father would not be able to hurt us whilst we were here, even at the airport in Hungary, we were very scared that my Dad would appear and hurt my Mum and take us away.  The first time I felt safe and that my Dad would not be able to hurt my Mum was on the airplane.  I don't want to go back to Hungary".

39. Exhibited to Ms Odze's report is a letter from D to the court in which he reiterates that "I am afraid of my father, I don't want to go back to my father".  With respect to the question of whether or not the children object to returning to Hungary, Ms Odze also states as follows in her report:

"It is my professional opinion that D has disengaged from his life in Hungary.  He told me that he had no family there and no friends in school and yet attached to the mother's statement is a latter from her cousin in which he mentions a daughter.  Most importantly, using the "three islands tool", D described Hungary as "the island of fear" where he said only his father, B, lived.  This was the island in the far corner of the page.  In the middle, he put himself, his sister, his mother and the maternal grandmother in what he called "the island of peace".  He said that this was here in the UK.  Similarly, F, who too placed herself in the middle island with her brother, her mother and the maternal grandmother, called one other island at the top corner "dry land" but nowhere on that image did B figure."

40. Having regard to her conversations with the children, Ms Odze is clear that neither of them want to go back to Hungary.  She notes that they equate a return to Hungary with being in the care of their father.  Ms Odze concludes that both D and F object to returning to Hungary.  She considered F's level of maturity is well below that of a child of her age and that D's level of maturity is below that of a 12-year-old child and thus not commensurate with his age. 

41. With respect to the question of the children's objections, the court also has the benefit of the report of Mrs Jenkins.  Before turning to consider the contents of that report in detail and Mrs Jenkins' oral evidence, it is import to consider in a little more depth how that report arose.

42. Ms Odze makes clear in her report that both children expressed a strong desire to meet the judge who was deciding their case.  As I have noted, at the request of the children, and on the recommendation of the Cafcass Officer and with the agreement of the parties, I met D and F in the presence of the Ms Odze.  Following the meeting, Ms Odze produced the minute I have set out below and gave both Counsel and solicitors feedback of the meeting, together with her observations of the children's, and particularly D's presentation.  It is appropriate to set out in full the minute of the meeting prepared by Ms Odze:

"His Lordship introduced himself to the children and they did the same each separately.  He then invited them to sit where they wanted.

The Judge told them that he wanted for them to see him so that they can see who will be making the decisions.

He also said that he knew that they had met with [Ms Odze] and had talked to [her] and had told [Ms Odze] how they feel about things and what they want. 

[He said that the Ms Odze had] also prepared a report for the Judge setting out all these things and that "I read that very carefully so I know what you say about things and I am going to think very carefully about that".

Mr Justice MacDonald noted that the children were looking at photos and he told them that sometimes Judges have to wear silly costumes and F laughed loudly.

Then he asked them if they had any questions and D said "yes".

D: "You know that I would like to be here". 

Judge:
"I do". 

D: "Because I don't want to go back to Hungary".

Judge:
"I know you said that and I will be thinking very carefully about that"

F:
"I also want to ask a question". 

Judge:
"Yes"

F:
"I am very scared to go back to Hungary because I am very worried"

Judge:
"I know that, Lillian said in her report and I will think very carefully about what I need to do"

D:
"Can I tell you how everything happened?"

Judge:
"I don't want you to do that because it can be very upsetting for you."

D:
"But I would like to tell you."

Judge:
"Not here, but what I have is a big pile of papers and that tells me everything that happened. So, before I make my decision I will know everything that happened and I will think very carefully about that. Ok?"

Both children replied OK

D: "Can I ask something?" 

Judge:
"Yes"

D:
"I would like to ask you not to send us back to Hungary because of all the secrets that we said and we can be in big trouble about that"

F started crying and she too said that she wants to say something. 

F: "I am very scared about going to Hungary so please do not send us back"

Judge:
"I am going to listen to everything and to what you say.  I am going to let you go now so that I can listen to the case"

D:
"Just one more thing, I am very, very afraid of my father."

F said the same thing as her brother

Judge:
"I understand that."

F:
"I love my Mum very much and my grandma very much."

Judge:
"Thank you for coming to see me. I know you are anxious and I am pleased to have met you, it has helped me a lot, I am going to let you go now."

As the children were leaving, standing facing His Lordship, they both pleaded, begging His Lordship in unison "please, please, please Judge do not send us back to Hungary, we are very afraid of my father". 

At that point, [Ms Odze] intervened as [she] did not think they would leave."

43. Whilst in no way a criticism of Ms Odze, the foregoing minute of the meeting does not fully convey the level of upset the children displayed during the course of their meeting with me.  It is also does not fully convey the behaviours that D exhibited during the course of the meeting, in particular a level of persistent and repetitive behaviour with two toy cars that seemed to be a pre-condition to him being able to articulate what he wished to say.  I also note in passing that the minute prepared by Ms Odze evidences the fact that I omitted to address the children with respect to the judge not being able to hold secrets, as required by paragraph 6(i) of the 2010 guidelines, or on how my decision would be communicated to the children, as required by paragraph 6(iii) of the guidelines.

44. The foregoing minute of the meeting also demonstrates some of the difficulties of judges seeing children, particularly in the context of the injunction against using such meetings as a means of gathering evidence.  Whilst that injunction has an entirely legitimate procedural and forensic foundation, it can place judges in some difficulty where it is inevitable that, upon meeting a child, a judge begins to form an impression of the child, to see how the presentation of the child compares to that contended for by the parties and, as in this case, to hear statements from the child that may be relevant to the issues that the court is tasked with deciding.   This is a predictable and unavoidable consequence of meeting and talking to children.   In this case, meeting the children resulted in them telling me directly that they objected to returning to Hungary, and their emotional presentation when articulating their objections gave me some impression of the potential impact of such a return on their emotional wellbeing.

45. How is a judge to treat such information?  On the basis of the Guidelines for Judges Meeting Children who are subject to Family Proceedings and subsequent authority, the judge may not rely on that information as evidence in the proceedings.  Against this, where the judge, as in this case, considers that what he or she has seen in the meeting with the children may have some relevance to the issues to be determined in the proceedings, it would be entirely artificial, and potentially unjust simply to banish those matters from his or her mind without more.  Within this context, it may be said that the injunction against using a meeting with the child as a means of gathering evidence contained in the Guidelines for Judges Meeting Children who are subject to Family Proceedings is far easier to articulate in theory than it is to apply in practice.

46. On the face of the 2010 guidelines, the difficulties I have articulated fall to be dealt with pursuant to paragraph 6(iv) of those guidelines, which paragraph provides that the parties or their representatives shall have the opportunity to respond to the contents of the meeting, whether by way of oral evidence or submissions. In this case, having heard submissions from the parties on the content of my meeting with the children, I decided that, in light of my concerns about the children's presentation during the course of the meeting and having regard to the issues raised in this case, the appropriate course was to authorise the joint instruction of an independent expert in the manner that I have already described. 

47. As I have noted, the report of Mrs Jenkins dated 20 November 2017 is now before the court.  Mrs Jenkins is a consultant and chartered clinical psychologist with some thirty years of experience in child psychology.

48. The report of Mrs Jenkins set out her opinion that both D and F merit a diagnosis of autism without accompanying intellectual impairment.  With respect to the incident that on both parents' evidence occurred on 13 September 2015, Mrs Jenkins relates that D stated he was frightened and upset when his father attacked his mother and tried to intervene but could not stop it happening.  Within this context, Mrs Jenkins notes that D confirmed he continued to re-experience the event through upsetting thoughts about what happened, seeing pictures in his head of the incident of the attack and having bad dreams about the attack.  D also told Mrs Jenkins that when his father rings and wants to speak to him he suffers physical symptoms, including a faster heart rate, sweaty hands and a bad feeling in his stomach.  Mrs Jenkins records that D has become more watchful, easily startled and experiences problems with sleep.  He also gets upset when he thinks of places where the incident happened. 

49. Mrs Jenkins noted that D was very emotional, tearful and restless when talking about the incident in September 2015.  She noted, as had I when I met D, that D was always spinning a toy in his hand rapidly and concluded that it appeared to be a behaviour triggered by feelings of distress and emotional turmoil.  Mrs Jenkins concluded that D still experiences significant distress and anxiety associated with the incident on 13 September 2015.  Having applied the Children's PTSD Inventory, Mrs Jenkins concluded that D is suffering from chronic post-traumatic stress disorder. 

50. During his cross examination of Mrs Jenkins, Mr Anderson pressed her on the fact that she had used the DSM IV criteria in reaching her diagnosis of PTSD rather than the more up to date DSM V, and in particular had not taken account of the fact that under the DSM V criteria, a diagnosis of PTSD can result from an event a person has heard about rather than directly experienced.  Mrs Jenkins sought to explain this by noting that there was not yet an appropriate DSM V questionnaire.  She said she was not aware that under the DSM V criteria, a diagnosis of PTSD can result from an event a person has heard about rather than directly experienced. 

51. Whilst I accept that these are matters of concern, they do not in my judgment act to undermine Mrs Jenkins fundamental conclusions in this particular case in circumstances where both parties concede that this is a case involving an incident which the children directly experienced, in circumstances where the categories of symptoms, behaviour and functioning that lead to diagnosis of PTSD are very broadly the same in DSM IV and DSM V, albeit that in the latter the criteria are now more detailed, and in circumstances where the behaviour exhibited by the children can be seen to remain squarely within the relevant DSM V criteria in any event.

52. Within the context of her diagnosis of D as suffering from chronic post-traumatic stress disorder, Mrs Jenkins agreed with the proposition put to her by Mr Crosthwaite in cross examination that to return D to the location of the incidents which gave rise to his PTSD would be highly detrimental to D.  Mrs Jenkins further emphasised that to return D to the location of the incidents which gave rise to his PTSD, in this case Hungary, would militate against the deployment of treatment for his PTSD.  Within this context, Mrs Jenkins noted that D is already beginning to articulate the dysfunctional coping strategies he would seek to employ if returned to Hungary, including refusing to eat food prepared for him by the father.

53. With respect to his wishes and feelings, D made clear to Mrs Jenkins he does not want to go back to Hungary as he feels unsafe there and would not want to return even for a visit.  D told Mrs Jenkins that he worries that the attack might happen all over again if they return to Hungary and that his father will hurt his mother again. 

54. With respect to F, Mrs Jenkins recorded that F indicated when responding to the Anxiety Scale that since living in England she was never worried about people getting mad with her or that people may hurt her, but that in Hungary she was always worried about this and was always afraid in Hungary that something bad might happen to her.  Mrs Jenkins considered that F's response to the Anger Scale suggested she had experience a higher level of angry or negative thoughts when living in Hungary.  Mrs Jenkins considered that F exhibited symptoms of post-traumatic stress disorder, albeit Mrs Jenkins was not able to make a formal diagnosis as F became too upset when asked questions about the incident on 13 September 2015.

55. Within the foregoing context, Mrs Jenkins was pressed extensively by Mr Anderson in cross examination on the question of whether her report proceeded on the assumption that the children were telling the truth about what occurred in Hungary in September 2015 and more widely.  In response, Mrs Jenkins, made clear in her oral evidence that (as is clear from the manner in which she approached the conclusions set out in her report) her remit in this regard was not to determine what had occurred in Hungary, but rather to examine the impact of what is alleged to have occurred on the children's current functioning and to examine within that context the impact on the children of returning them to Hungary. 

56. Within this context, Mrs Jenkins further emphasised repeatedly that, in light of each child having a diagnosis of autism, what was important in examining the children's views and the impact of returning them to Hungary was not what had, objectively, happened in Hungary, but rather the children's subjective perception of what had happened and the effect of that subjective belief on each child.  In this regard, Mrs Jenkins further emphasised that D in particular is, by virtue of his autism, apt to take a very black and white view of events, lacking in nuance. 

57. Thus, by way of example, Mrs Jenkins made clear that if D had seen certain actions by the father on 13 September 2015 that for D gave the impression that his father wanted to, or was trying to kill the mother, or had heard the father state he was going to kill the mother, D will believe that his father was trying to kill his mother irrespective of the actual motivation of the father or the facts that the threats may have been, for example, empty.  Thus, Mrs Jenkins made clear that, irrespective of the objective truth of what occurred on 13 September 2015, D believes that his father tried to kill his mother and that this experienced belief is still affecting D.

58. Finally, with respect to the report of Mrs Jenkins, she makes clear that neither D nor F wishes to return to Hungary and the prospect of such a return causes them significant anxiety and distress.  In Mrs Jenkins' opinion, both children consider England to be a sanctuary.  Within this context, Mrs Jenkins opines that if D and F were forced to return to Hungary against their will, their mental health would deteriorate significantly and their overall development will be adversely affected.  Mrs Jenkins makes clear her opinion that the children's anxiety in respect of having to return to Hungary is not only related to their fear of having to have contact with their father, it is also connected with the children having experienced Hungary as an unsafe place, where bad things have happened to them.  In oral evidence, Mrs Jenkins stated that, within the context of their diagnosis of autism, for the children Hungary equals the place where bad things happen and if they are moved to Hungary this will increase their level of trauma.  Mrs Jenkins made clear in her oral evidence that this will be the position independent of whether the children have contact with their father, as it is Hungary that the children perceive to be the place of fear, it mattering not in that context whether that perception is rational or irrational.  Within this context, Mrs Jenkins concludes in her report that:

"Therefore, even an assurance that a return to Hungary does not mean that they have to have contact with their father, will not ameliorate the severe adverse impact on their overall psychological well-being, if they have to return to Hungary against their will."

59. The father contends that the children have said what they have said regarding a return to Hungary because the mother has been speaking to them in detail about these proceedings and has put them into a position where they are now scared of being removed from her.  Within this context, the father asserts that the children are saying what the mother wishes them to say.  He denies that the children have ever been frightened of him in the past, again relying on the contact he has had with the children since the parents' separation.  The father invites the court to view the children's objection to returning to Hungary within the context of what he contends is the information that the mother has been giving to the children, namely that they will be living with him.  The father also questions whether the children are of an age and level of maturity where their wishes and feelings should be taken into account.  This contention was pressed by Mr Anderson in his cross examination of Mrs Jenkins as an explanation for the children's views.  However, in addition to Mrs Jenkins rejecting that assertion, and as Mr Anderson was forced to concede, there is no evidence before the court that this was the case.


THE LAW
Objections
60. The law on the 'child's objection' defence under Art 13 of the Convention is comprehensively set out in the judgment of Black LJ in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections) [2015] EWCA Civ 1022) and I have regard to the clear guidance given in that case. In summary, the position is as follows:

i) The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

ii) Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

iii) The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.

iv) There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.

v) At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

61. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).

Harm
62. The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. The applicable principles may be summarised as follows:

i) There is no need for Art 13(b) to be narrowly construed.  By its very terms it is of restricted application.  The words of Art 13 are quite plain and need no further elaboration or gloss.

ii) The burden lies on the person (or institution or other body) opposing return.  It is for them to produce evidence to substantiate one of the exceptions.  The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

iii) The risk to the child must be 'grave'.  It is not enough for the risk to be 'real'.  It must have reached such a level of seriousness that it can be characterised as 'grave'.  Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.

iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'.  'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.

v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country.  The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home.  Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.

vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled.  However, in principle, such anxieties can found the defence under Art 13(b).

63. In this case, Art 11(4) of BIIa is engaged.  Pursuant to that provision, the court cannot refuse to return the children to the jurisdiction of their habitual residence on the grounds set out in Art 13(b) of the 1980 Hague Convention where the court is satisfied that adequate arrangements can be made to secure the protection of the children on their return.

64. Violence per se will not be sufficient to found the defence under Art 13(b).  Having regard to the foregoing provisions, the vital consideration is whether the child and the abducting parent will have sufficient protection if they return to the State of the children's habitual residence.  The court has made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as ground the defence under Art 13(b).  Rather, the court should assume the risk of harm at its highest and then, if it meets the test in Art 13(b), consider whether protective measures sufficient to mitigate harm are identified.

65. It is necessary to say a little more in this case about anxieties not based on objective risk, as considered by the Supreme Court in Re S (A Child) [2012] UKSC 10.  As I have observed above, in that case, the Supreme Court confirmed that the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable are capable of grounding a defence under Art 13(b).  In this regard, Lord Wilson observed as follows at [27] and [34]:

"[27] In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: eg, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found "no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real".

And

"[34] In the light of these passages we must make clear the effect of what this court said in In re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned."

66. In circumstances where a fixed and immutable subjective fear on the part of a parent, independent of the truth or otherwise of the allegations, is capable of grounding a defence under Art 13(b), it seems to me that there is no principled reason why the same analysis cannot apply when it is the child who holds a fixed and immutable subjective fear independent of the truth or otherwise of the allegations that are made in the proceedings.  Indeed, in circumstances where Art 13(b) expressly focuses on the question of harm to the child, it seems to me that the ability of a fixed and immutable subjective fear on the part of a child independent of the truth or otherwise of the allegations is all the more capable of grounding a defence under Art 13(b) on the basis that to return the child to the country of his or her habitual residence in the face of such a fixed and immutable subjective fear would result in a grave risk that return would expose the child to psychological harm or otherwise place the child in an intolerable situation.

67. Finally, it is important to note that where there is evidence sufficient for the court to draw conclusions as to what was the objective reality for the child, Lord Wilson observed in Re S that it will not be necessary for the court to examine the subjective position.  In this respect, Lord Wilson made the following observations regarding the position Charles J found himself in that case:

"In the light of his conclusion at (d), which on any view was open to him, it seems to us that it was unnecessary for Charles J to have continued to address the mother's subjective perceptions. For the effect of his conclusion was that the mother's anxieties were based on objective reality. So it added nothing for him to refer, as in effect he did in three separate paragraphs of his substantive judgment, to the mother's 'genuine conviction that she has been the victim of domestic abuse', by which he implied that she was convinced about something that might or might not be true."

DISCUSSION
68. Having listened carefully to the submissions of counsel and having considered the documentary evidence before the court, I am satisfied in this case that the father's application for summary return of the children to the jurisdiction of Hungary should be dismissed.  My reasons for so deciding are as follows.

Allegations of Domestic Abuse
69. I am satisfied in this case that the evidence before the court demonstrates a good prima facie case that the mother was the victim of significant domestic abuse at the hands of the father, that there was a deeply troubling and traumatic incident on 13 September 2015 in which the mother was assaulted by the father and that the children have been witness to these incidents of domestic abuse, including the incident on 13 September 2015.  I reach this conclusion for the following reasons:

i) Both parents accept that there were incidents of dispute during the course of their relationship, some of which disputes the children witnessed.

ii) The Hungarian social services have confirmed that there were aware of issues of domestic abuse in the family home and were involved with the family on a daily basis due to family conflict.

iii) The accounts provided by the children and their mother of life in the family home are internally consistent in many respects, including the father repeatedly and extensively questioning D as to the mother's whereabouts and activities and the father teaching D to fight.

iv) The father concedes that there was an incident between himself and the mother on 13 September 2015 and corroborates some of the mother's account in that regard.  In particular, he corroborates her account that the incident started when the family were out, that the parents continued to argue in the bathroom at the family home and that the mother suffered a cut to her hand during the incident.

v) The accounts provided by the children and their mother about the incident on 13 September 2015 are internally consistent in many respects.  In particular, the are consistent with regard to the fact that the father was questioning D prior to the incident and that such questioning appeared to be the trigger for the incident in the family home, that the incident occurred in the bathroom in the presence of knives, that the mother cut her hand on a knife during the incident and that both children tried to protect their mother during the incident.

vi) D gave a consistent account of the incident of 13 September 2015 to both Ms Odze and Mrs Jenkins.  F also gave an account of the event, in which she too mentioned attempts by the children to protect their mother.  D also gave an account of other incidents which, as I have mentioned, corroborate to a certain extent the account provided by the mother.

vii) The evidence of Mrs Jenkins makes it clear that, given their respective diagnoses of autism, there is a reduced likelihood of the children being able to pretend events occurred when they did not or to 'fake' feelings, and a greater likelihood of the children revealing any efforts by others to compel them to fabricate events.

viii) The children's level of distress, anxiety and upset when recalling their family life at home to Mrs Jenkins tends to support the credibility of their accounts of what they witnessed, as does the conclusion of both Ms Odze and Mrs Jenkins that the children's anxiety and distress was real and tangible.  Both Ms Odze and Mrs Jenkins considered that the children's demeanour made it likely that they were each recalling events that they had witnessed directly.

70. I have of course borne very carefully in mind the points made by Mr Anderson that he submits tend to undermine the credibility of the accounts provided by the mother and the children.  In particular the fact that the incident on 13 September 2015 did not feature in the mother's case before the District Court in Pécs in March of this year, that the incidents of domestic abuse the mother now alleges led up to the incident on 13 September 2015 did  not feature in her first statement to this court and the fact that the mother continued to try to promote supervised contact between the father and the children after 13 September 2015.  However, having regard to the totality of the information before the court, and ever mindful of the limitations of the summary nature of the process with which the court is engaged when evaluating the evidence, for the reasons I have given I am satisfied on the evidence before the court that this is a case in which it can be said that the children's expressed fears and anxieties are based on an objective, verifiable reality of them witnessing incidents of domestic abuse in the family home and witnessing and being involved in a serious and deeply traumatic incident of domestic abuse on 13 September 2015.

71. I am also satisfied that in this case that, by virtue of the particular condition from which both children suffer, their objective experience of life in the family home is now overlain by a significant subjective component.   In this regard, I accept the evidence of Mrs Jenkins that whatever the precise objective truth is in respect of the children's experience in their family home up to and including 13 September 2015, their subjective experience of that situation has left them also with fixed and immutable subjective fears.  In particular, it has left D with a fear that his father was trying to, and is going to kill his mother, and that this will be one consequence of a return to Hungary.  

72. This is a slightly different position to that contemplated by Lord Wilson in Re S that where there is evidence sufficient for the court to draw conclusions as to what was the objective reality for the child, it will not be necessary for the court to examine the subjective position.  In this case, the court is faced with the consequences of both the objective reality for D and F in the family home and the subjective fears that the children have derived from that situation in the context of the condition under which they labour.  Thus, again, whilst the objective reality of the incident the children witnessed may well be that the father was not trying to kill the mother on 13 September 2015, D's subjective belief deriving from that event is that he was and that he will if provided with the opportunity to do so.

Children's Objections

73. Within the foregoing context, there is clearly a significant overlap between the defence of child's objections and the defence of harm in this case.  I turn first to deal with the defence of child's objections under Art 13 of the 1980 Hague Convention.

74. Having regard to the evidence before the court as set out above, I am satisfied that a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied demonstrates that both D and F object to being returned to the jurisdiction of Hungary.   Mr Anderson, wisely, did not seek seriously to dispute this proposition.   For the reasons I have set out above, I reject the father's assertion that the children's objections have their root in the influence of the mother or her family.  As I have stated already, in addition to the evidence of Mrs Jenkins in this regard, there is simply no cogent evidence before the court to support such an assertion.

75. I am further satisfied, having regard to the evidence of Mrs Jenkins, that both D and F have attained an age and degree of maturity at which it is appropriate to take account of their views.  Whilst I note the conclusion of Ms Odze regarding the children's level of maturity, the necessarily more comprehensive testing undertaken by Mrs Jenkins indicates that, whilst each child has a diagnosis of autism, they do not have any accompanying intellectual impairment.  Within this context, I am entirely satisfied that both D, at age 12, and F, at age 11, have attained an age and degree of maturity at which it is appropriate to take account of their objections.

76. As I have noted, the objections of the children are not determinative of the outcome of these proceedings but rather give rise to a discretion, which discretion is at large.  Having regard to the evidence before the court, I am satisfied that I should exercise my discretion not to return the children to the jurisdiction of Hungary, in reaching that decision I have born in mind the following matters:

i) The children's objections have been and remain persistently and very strongly expressed.  Both D and F never miss an opportunity to express in clear terms, and seek to explain why they do not wish to return to Hungary.  It is plain that those objections centre on a fear of returning to Hungary as being the place where bad things happen, independent of whether or not they see their father.   The fact that each child has a diagnosis of autism does not detract from the strength of their objections.

ii) The court has before it cogent evidence that to return the children to the jurisdiction of Hungary would cause them not only extremely high levels of fear, distress and anxiety, but would also have a severe adverse impact on their overall psychological well-being and result in a significant deterioration in their mental health.  In my judgment, the evidence demonstrates that the fact that D and F have autism does markedly increase these risks.  I note again that D is already contemplating the dysfunctional coping strategies he would seek to deploy were he to be returned.  I further recall Mrs Jenkins evidence that, in circumstances where it is the location of Hungary itself that drives the children's fear and anxiety, this is not a case where protective measures would adequately ameliorate this situation.

iii) The court has before it cogent evidence that D (and possibly F) suffer from chronic PTSD.  The court also has clear evidence from Mrs Jenkins that to return D to the location in which the trauma that grounds his PTSD would militate against the successful resolution of that condition.

iv) The children plainly regard living in England as a form of safe harbour from the matters they have previously witnessed.  The children have managed to establish a degree of stability in terms of their home life and education.  Within this context, the court has evidence before it that to remove the children from that safe harbour at this time would be entirely antithetic to their welfare in circumstances where, as they would see it, they would be returning to fear for their mother's life and uncertainty.  I also bear in mind Mrs Jenkins evidence that there are, at present, significant advantages for the children's recovery from the emotional harm they have suffered in maintaining distance from the location in which they experienced trauma.

v) Whilst the subject of an appeal by the father, and whilst there are separate proceedings ongoing before the District Court in Pécs, it is the case that the mother has, at least at present, permission to remove the children from Hungary and reside in the jurisdiction of England and Wales.  Having regard to the factors set out in this paragraph, and in any event, it would not be in the children's best interests to return them to the jurisdiction in Hungary in circumstances where the mother is, at present, entitled to return to England immediately upon arrival. 

77. I have again borne carefully in mind the matters pressed upon me by Mr Anderson as leading to a conclusion that the court should exercise its discretion in favour of ordering the return of the children to Hungary.  Those matters include the fact that the children's objections are not determinative, the policy under the 1980 Hague Convention that welfare issues in respect of the children are should be decided in their country of habitual residence continues to apply with force, the children are Hungarian and speak Hungarian as their first language, the children remaining in England will limit the relationship they are able to have with their father and extended family, that proceedings are already on foot in Hungary and that the Hungarian social services are already engaged with the family.  However, in the circumstances of this case, I am satisfied that the matters relied on by the father are heavily outweighed by other welfare considerations that I have outlined in the foregoing paragraph.

78. Balancing the competing welfare considerations in this case, in so far as it is possible to take a view about them on the limited evidence available in proceedings of a summary nature, I am entirely satisfied that I should exercise my discretion resulting from the children's objection to returning the jurisdiction of Hungary in favour of not ordering their return.

Harm

79. On the basis of the conclusions I have reached in respect of the defence of objection, the outcome of this case is that I decline to order the return of the children to the jurisdiction of Hungary.  However, I am also satisfied that the defence under Art 13(b) is made out in this case.  

80. Whilst I agree with Mr Anderson that were the evidence before the court limited simply to the narrative of the incidents domestic abuse described by the mother in this case it might have been difficult for the mother to make out a defence under Art 13(b), the evidence is not so limited.   Specifically, in this case, there is clear and cogent evidence of the severe impact on the children of the incidents to which they have been exposed in the family home.  As I have set out above, I am satisfied on the evidence before the court that this is a case in which it can be said that the children's expressed fears and anxieties are based both on an objective, verifiable reality of them witnessing incidents of domestic abuse in the family home and witnessing and being involved in a serious and deeply traumatic incident of domestic abuse on 13 September 2015 and on the overlying subjective fears they have drawn from that objective experience, in light of their particular, identified, condition.

81. Within this context, and having regard to the evidence of Mrs Jenkins and Ms Odze, I am entirely satisfied that returning the children to the jurisdiction of Hungary would involve, for each child, a grave risk of exposure to psychological harm and would place each of the children in an intolerable situation.  I again remind myself of Mrs Jenkins' evidence that, within this context, if D and F were forced to return to Hungary against their will, their mental health would deteriorate significantly and their overall development will be adversely affected.  By reason of the fact that it is the location of Hungary itself that drives the children's fear and anxiety, and the adverse consequences that would accordingly flow from an order for return, having regard to the evidence of Mrs Jenkins I am satisfied that this is not a case where protective measures are capable of adequately ameliorating the grave risk exposure to psychological harm.  Within this context, I am satisfied that Art 11(4) of BIIa is not engaged in this case.

82. Once again, this conclusion gives rise to a discretion.  Once again, I am satisfied for the reasons I have already set out that that discretion should be exercised in favour of not returning the children to the jurisdiction of Hungary.


CONCLUSION

83. In conclusion, I am satisfied that the mother has made out the defences upon which she seeks to rely under Art 13 of the 1980 Hague Convention.  I am further satisfied that I should exercise my resulting discretion not to order the return of the children to the jurisdiction of Hungary.  In the circumstances, I dismiss the father's application.

84. That is my judgment.